KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.619/05 JUDGMENT DATED4/8/09 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER The Secretary, KSEB, Pattom, Thiruvananthapuram. -- APPELLANT (By Adv.B.Sakthidharan Nair) Vs. Sajumon.K, Licencee, Indian Oil Corporation, -- RESPONDENT Petrol Bunk, Kodungoor, Kottayam. (By Adv.Kulathoor S.V.Premakumaran Nair) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is directed against the order dated 19th April 2005 of the CDRF, Kottayam in OP.No.246/04. The complaint in the said original petition was filed by the respondent herein as complainant against the appellants as opposite parties claiming compensation of Rs.10,000/- and also for getting the disputed bill dated 13.9.04 (Ext.A1) cancelled. The complainant alleged deficiency in service on the part of the opposite parties in issuing the disputed bill dated 13.9.04. The opposite parties entered appearance and filed written version disputing the alleged deficiency in service. They contended that the complaint is not maintainable as the complainant is not a consumer under the opposite party/KSEB and that the electricity supply is being given for running a business and so the complainant cannot be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986. It is further contended that the disputed bill was issued based on short assessment of the energy charges and that the meter was faulty from April 2002 and so there was only a provisional assessment of the energy consumed. Thus, the opposite parties requested for dismissal of the complaint. 2. Before the Forum below the complainant as well as the second opposite party/Asst. Executive Engineer filed proof affidavits in lieu of examination in chief. Exts.A1 to A3 and B1 to B3 were also produced and marked from the side of the parties. On an appreciation of the evidence on record, the forum below passed the impugned order and thereby set aside the disputed A1 bill. The opposite party has been given the liberty to issue fresh bill demanding energy charges for consumption of energy for the month of August 2004. The claim for compensation was dis-allowed. The opposite parties are also burdened with the payment of costs of Rs.750/- to the complainant. Aggrieved by the said order the present appeal is preferred. 3. We heard both sides. The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He relied on Exts.B1 to B3 documents, especially B2 meter reading register and canvassed for the position that the meter was faulty and the faulty meter was replaced on 20.3.03. It is further submitted that after the installation of new meter the average monthly consumption was 788 units per month. Thus, the appellants justified their action in issuing the impugned bill dated 13.9.04 demanding a sum of Rs.11,108/- by way of short assessment charges for the period from September 2002 to February 2003. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the forum below. He also relied on B2 meter reading register and submitted that the opposite party/KSEB had already invoked the provisions of Clause 31 (C) of the conditions of supply of electrical energy and thereby assessed the consumption of energy at 584 units per month, based on the average consumption for the previous 3 months. Thus, the respondent challenged the legality of the impugned A1 bill dated 13.9.04. 4. The points that arise for consideration are:- 1. Whether the complainant in OP.No.246/04 before the CDRF, Kottayam can be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986? 2. Whether the appellants/opposite parties can be justified in issuing A1 energy bill dated 13.9.04 claiming a sum of Rs.11,108/- by way of short assessment of energy charges for the period from September 2002 to February 2003, with short assessed duty of Rs.572/-? 3. Whether the case of the respondent/complainant that there was deficiency in service on the part of the opposite parties in issuing A1 bill dated 13.9.04 can be upheld? 4. Is there any legally sustainable ground to interfere with the impugned order dated 19.4.05 passed by CDRF, Kottayam in OP.No.246/04? 5. POINT NO.1:- For the sake of convenience we will refer the parties to this appeal according to their rank and status before the forum below in OP.246/04. 6. The complainant is a licensee of the Indian Oil Corporation. The license for running the Petrol pump at Kodungoor was accorded in favour of the complainant by virtue of A2 agreement entered into between the complainant and Indian Oil Corporation Ltd. Ext.A2 agreement would make it abundantly clear that the complainant has been appointed as the licensee (dealer) for running the Petrol pump owned by Indian Oil Corporation at Kodungoor. It is to be noted that the aforesaid Petrol pump covered by A2 agreement was in the name of the Indian Oil Corporation Ltd. The said premises were provided with electricity supply with Consumer No. 9975. The complainant was appointed as the dealer/licensee of the said premises with the aforesaid electricity supply. As per A2 agreement the complainant as the dealer/licensee is bound to pay the electricity charges and that he can enjoy the said premises with the electricity supply connection until the existence of the dealer ship. There can be no doubt about the fact that the complainant has been enjoying the service of the KSEB through the Indian Oil Corporation Ltd. The aforesaid benefit or enjoyment was on the strength of A2 agreement with the consent and approval of the original consumer Indian Oil Corporation Ltd. So, the complainant can be considered as a beneficiary of the service. If that be so, the complainant is entitled to get all the benefits under the Consumer Protection Act, 1986. 7. The definite case of the complainant is that he is running the petrol pump at Kodungoor as a licensee/dealer of the Indian Oil Corporation Ltd. for his livelihood by means of self-employment. It is categorically pleaded in the complaint that he was selected as the licensee under the reservation category of scheduled casts and that he is conducting the business as self-employment exclusively for his livelihood. The aforesaid pleading has also been stated in the proof affidavit filed by the complainant. The said averment that the complainant is running the said business as dealer of the petrol and other oil products for his livelihood by means a self employment has not been denied or disputed by the opposite parties. It is to be noted that the second opposite party who filed the proof affidavit in this case has not denied or disputed the said averment that the complainant is not running the said business exclusively for his livelihood by means of self employment. Thus, the aforesaid evidence of the complainant in his proof affidavit stands unchallenged. So, the Forum below has rightly held that the complainant is a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 and that the complaint in OP.246/04 is maintainable. We do not find any ground to interfere with the said findings of the Forum below. This point is found in against the appellants/opposite parties. 8. POINTS 2 TO 4:- There is no dispute that the meter installed at the premises of the Consumer No.9975 was struck up in April 2002 and the meter was not recording consumption of energy there after. The defective energy meter was replaced by the opposite party/KSEB on 20.3.2003. Ext.B2 is the meter reading register of the Consumer No.9975. The entries in B2 meter reading register would make it abundantly clear that the energy meter installed at the premises of the Consumer No.9975 struck up during April 2002, when the meter reading was 4869. Thereafter the readings have been recorded as 4869 until the faulty meter was replaced on 20.3.2003. It is the case of the opposite parties that after replacement of the faulty meter with a new energy meter the consumption of energy has been increased considerably and that the average consumption came to 788 units per month. But B2 meter reading register would not show the consumption of energy after the replacement of the faulty meter on 20.3.2003. Anyhow, there is no dispute that the average consumption came to 788 units per month from March 2003 onwards. It is based on the aforesaid average consumption at 788 units per month the short assessment bill was issued. Ext.B3 is the calculation for the re-assessment (short assessment) for the period from September 2002 to February 2003. B3 calculation statement would show that there was short assessment of 1,224 units of energy. Admittedly, the opposite party/KSEB had assessed energy charges from September 2002 to February 2003 at the rate of 584 units per month. After deducting the said consumption the short assessment has been taken as 1224 units. Thereby, a sum of Rs.11,108/- has been claimed by way of short assessment of energy charges. 9. It is the case of the opposite party that they issued A1 short assessment bill dated 13.9.04 by invoking the provisions of clause 31 ( c) of the conditions of supply of electrical energy. A reading of the aforesaid clause 31 ( c) would make it clear that the short assessment of energy charges can be made in the event of the energy meter not recording the actual consumption of energy. It is also stipulated that for making short assessment average of the previous 3 months consumption is to be taken. In the event of average consumption for previous three months could not be take then, the assessment can be made based on the consumption for succeeding 3 months. But in the present case on hand, the B2 meter reading register would make it clear that the energy meter struck up during April 2002 and prior to that the meter was recording properly. There is nothing in B2 meter reading register indicative of any sort of irregularity or faulty nature of the energy meter prior to April, 2002. In March 2002, the consumption has been recorded as 475 units. In February 2002 the consumption was 497 units and in January 2002 the consumption was 780 units. The average of these 3 months consumption would come to 584 units. This circumstance would make it clear that the opposite party/KSEB had already applied the provisions of Clause 31 (c ) of the conditions of supply of Electrical energy and thereby assessed the energy for the period during which the meter was faulty. Admittedly the consumer has already been assessed at the rate of 584 units per month and that the complainant remitted the amount based on the said assessment of the energy consumption. In this circumstance, it is not just or proper on the part of the opposite party/KSEB in making a further assessment by invoking the very same provisions of Clause 31 ( c) of the conditions of supply of electrical energy. There is no provision in the conditions of supply of electrical energy to invoke Clause 31 ( c) again and again for the very same period. The mere fact that the consumption of energy has been increased after the replacement of the faulty meter cannot be taken as a ground to hold that the complainant had consumed more energy during the period in which the meter was faulty. There is no case for the opposite party in the written version that the meter was faulty prior to April 2002. There is no whisper in the written version that the consumption of energy recorded in the meter reading register for the period prior to April 2002 is not correct. There is no justification on the part of the opposite party/KSEB in re-assessing the consumption of energy for the period from September 2002 to February 2003 based on the average consumption for the succeeding 3 months. It is pertinent to note that the assessment of the energy for the period from September 2002 to February 2003 based on the average consumption for the previous 3 months is already been effected by the opposite party. It is further to be noted that the opposite party has already assessed the consumption of energy based on the average consumption for the previous 3 months for the period from April 2002 to February 2003. There is no ground to make any alteration to the aforesaid assessment made by the opposite party/KSEB. No justification for making a further re-assessment of the consumption of energy based on average consumption for the succeeding 3 months. It is to be noted that the aforesaid method adopted by the opposite party/KSEB is in fact against the provisions of Clause 31 ( c) of the conditions of supply of electrical energy. So, the forum below is perfectly justified in setting aside the impugned energy bill (A1 bill) dated 13.9.04 with a liberty to issue fresh bill for consumption of energy for the month of August, 2004. The Forum below is also justified in awarding cost of Rs.750/- to the complainant. We do not find any legally sustainable ground to interfere with the impugned order passed by the forum below. These points are found against the appellants/opposite parties. In the result, the appeal is dismissed. The impugned order dated 19.4.05 passed by CDRF. Kottayam in OP.No.246/04 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. M.V.VISWANATHAN -- JUDICIAL MEMBER S.CHANDRAMOHAN NAIR -- MEMBER S/L
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